It’s critical to reform India’s justice system — and urgently — for the sake of country, community and equitable social development
An unspoken victim of the Covid-19 pandemic, one ailing even before the crisis struck, was India’s justice system. The sudden and unprecedented emergency upon us has further exacerbated the inability of the system to deliver, even as the need for fair, accessible and efficient justice has increased manifold.
There has been little public clamour regarding the approach to the lockdown, the reduced functioning of our judiciary, the abuses committed by the police, or the vulnerability of prison populations held in overcrowded enclosures across the country. Viewed as a necessary evil in extraordinary circumstances, the normalisation of violations becomes inevitable. This must not be allowed.
The delivery of justice, as an essential service, is guaranteed through the constitutional promises of ‘equality before the law’ and ‘the protection of life and personal liberty’. As a sovereign function that cannot be undertaken by any other actor; it is the prerogative of the state to ensure access to justice. Every government, therefore, is duty-bound to provide an impartial, efficient, responsive and accessible justice system to all.
The ability to function effectively during a time of national crisis such as the pandemic lies in working out practical measures at every level and using available spaces and people to their optimum, while minimising the risk of exploitation and harm.
As the second wave of Covid-19 rages through India, it may appear counterintuitive to press on the importance of justice as an essential service. However, justice institutions serve not just those who find themselves directly enmeshed in the system, but also the larger purpose of peace in the community, trust in governance, equity in development, socioeconomic growth and overall prosperity.
Across the world, development practitioners have realised that the absence of access to justice, equity and equality thwarts development and compromises the path out of poverty. That’s the reason for goal 16 of the United Nations’ Sustainable Development Goals, which falls under the rubric ‘peace, justice and strong institutions’.
The Tata Trusts have worked continuously and for long to improve the quality of life of individuals, particularly the vulnerable and marginalised. Since the pandemic hit, such efforts at amelioration have redoubled.
In 2018, backing up the belief that justice and rule of law are the cornerstones on which the ability to meet socioeconomic developmental endeavours are based, the Trusts supported a unique ranking of India’s states on their capacity to deliver justice.
The India Justice Reports (IJRs) 2019 and 2020 rely entirely on publicly available, official data to rank these states based on assessments of the four pillars of the formal justice system: police, prisons, judiciary and legal aid.
The reports measure the level of budgets, human resources, infrastructure, workload and diversity available to these pillars. Importantly, it tracks trends to objectively measure the intention of each government to improve justice delivery annually and over a period of five years.
The intent behind the IJR idea was to create a universal tool that could assist policymakers and official functionaries, particularly at the state level, in plugging gaps in the delivery of justice and enable the engagement of all stakeholders in the effort.
The expectation from any government in times of normal functioning is the fulfilment of demands made by its people — better infrastructure, improved healthcare and education, access to safe drinking water and a clean environment, among others. To complete this list, we must add improved access to fair and efficient justice.
As the recently released second edition of IJR spotlights, India’s justice system has retained its deficiencies even as the country grapples with the devastating second wave of the pandemic. Our findings show that the overall pathologies from the previous report (IJR 2019) have little changed.
Vacancies persist across the board in all subsystems, ranging from 9% to 42%. Of particular concern is the lack of medical staff in prisons. This has gone up by 6 percentage points since 2016 to touch 41%.
With shortfalls that, on average, stand at 30% for high courts and 25% for subordinate courts, the appointment of more judges is a no-brainer. Also, the dearth of senior personnel able to manage courts is showing. Court managers with experience and specialisation will free judges from administrative tasks and leave them to what they do best — adjudicate.
States continue to show scant desire to increase expenditure on prisons; the stated objective of becoming reformative institutions remains stillborn. The caseload, combining as it does with paucity of judges, poor supporting infrastructure and low budgets, shows an accelerating accumulation. Over 2016-17 and 2018-19, cases went up by 10% in the high courts and by 5% in subordinate courts.
Two years of uncertainty and lockdowns have severely undermined the ability of the system to cope. Given the situation with the pandemic, the justice system may be in an even weaker position to deliver services to ordinary people in the months to come. This is an imminent crisis that needs urgent and immediate addressing.
The public health emergency has brought to light the ailing nature of other systems of the state, which are unable to guarantee that which every citizen is entitled to expect under the constitution. But there is light at the end of the tunnel, though.
As the Supreme Court has noted, the pandemic should be viewed as an opportunity, albeit unfortunate, to reform the justice system. This could prove a chance to ignite a conversation with citizens on what needs to be done — and can be done quickly — to improve the system; a veritable reset button to shift towards upgraded justice delivery.
Our justice reports facilitate this discussion by offering recommendations to states. There are low-hanging fruits that can be easily plucked, and the process of doing so will signal the intention to provide a free, fair and efficacious system. Meanwhile, innovations such as increasing the use of technology will create new habits that break away from old practices and work to fix this imperfect structure.
The realisation of all social goals, health and livelihoods included, cannot progress without the assurance of an effective system of justice delivery, one that is easily available to all. If we do not move forward and reform what has remained broken for years, injustice will remain a bitter pill stuck in the public craw. This will eventually lead to the demise of the rule of law and democracy itself.
The declaration of justice services as undeniably essential is the first step in ensuring that all rights, legal and beyond, are upheld.